Date: 20060406
Docket: IMM-3925-05
Citation: 2006
FC 445
Ottawa, Ontario, April 6, 2006
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
OSCAR HUGO CAMPOS SHIMOKAWA
NANCY VIOLETA COLCA DE CAMPOS
GAIL SAYURI CAMPOS COLCA
SEIKY BERNIE COMPOS COLCA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(IRPA), for judicial review of a decision of the Refugee Protection Division of
the Immigration and Refugee Board (the Board), wherein the Board determined
that the applicants were not Convention refugees nor persons in need of
protection according to sections 96 and 97 of the Act, respectively.
[2]
The
applicants are citizens of Peru. Their claim is based on the
following facts.
[3]
In May 1994, members of the Shining Path
approached the principal applicant in his restaurant in Villa Rica demanding
food and money. The principal applicant felt that he was forced to accept their
demands because the guerrillas threatened to kill him and his family.
[4]
In April 1998, four members of the Shining Path
arrived at his restaurant and demanded 5,000 USD, but the principal applicant
told them that he did not have the money. They gave him two months to pay.
[5]
In May 1998, two policemen from Villa Rica
advised him that a detained terrorist had accused him of working with the
Shining Path. The police explained that they would have to report the
accusation. The principal applicant left his cook in charge of the restaurant
and went into hiding with his family in another part of Villa Rica. During the
following months, the Shining Path is alleged to have visited the homes of his
mother-in-law as well as his parents.
[6]
In June 1998, policemen arrived at the
restaurant asking for the principal applicant.
[7]
In August 1998, as a result of the problems with
the Shining Path, the cook closed the restaurant.
[8]
On March 27, 1999, the applicants left Peru and went to Japan, where they allege to have suffered a great deal of racial
discrimination. In March 2001, the applicants discovered that Japan did not have a refugee programme.
[9]
The applicants arrived in Canada on December 16, 2001 and made their
claims for refugee protection in January 2002.
[10]
With regard to the risk from the Shining Path,
the Board found that in the context of the current situation and future risks
to the applicants, it was apparent that state protection exists in Peru for persons threatened by the Shining
Path and that the Peruvian state had taken steps to combat the terrorist group.
[11]
As for the principal applicant’s credibility,
the Board did not believe his story about being approached by the Shining Path
in the persistent and threatening manner that he described. In the principal
applicant’s handwritten notes to Citizenship and Immigration Canada (CIC) dated
March 27, 2002, the principal applicant made no mention of any direct dealings
with the Shining Path either in finding work for a suspected member or being
extorted and threatened. The applicant made the statement: “There is terrorism
in Peru.” An additional
statement was made to CIC on April 2, 2002, but still no mention of direct
dealings with the Shining Path was made. On the other hand, in his personal
information form (PIF) narrative, dated May 17, 2002, the principal applicant
recounts an elaborate and persistent extortion history. The Board placed more
credence on the principal applicant’s handwritten notes to CIC than on the PIF
narrative.
[12]
As concerns the risk from the Peruvian
anti-terrorist police, the Board found it difficult to accept that a government
agency such as the DINCOTE would have been unable to find the principal
applicant or his family in Peru
from July 1998 until the family’s departure on March 27, 1999.
[13]
The Board found it highly improbable that the
police would be looking for the principal applicant at his restaurant in July
1998 and at his parents’ home in December 1998 and yet would not notice that
two of the applicants had obtained passports in August 1998 (passports having
the primary purpose of travel). The Board found it similarly improbable that if
the DINCOTE were actually seeking the applicants, they would be able to simply
leave Peru by plane. The Board
also found that the daughter’s testimony contradicted the principal applicant’s
allegations. Although the PIF narrative states that in December 1998, the DINCOTE
went to the principal applicant’s parents’ home looking for him, the daughter
(who was living with his parents’ at the time) testified that there was no such
visit and that she would have known if such a visit did take place.
[14]
The Board concluded that the applicants had
failed to provide clear and convincing evidence that there is a serious
possibility that state protection would not be reasonably forthcoming. The
applicants also failed to show that they had made reasonable efforts to seek
state protection. The Board further concluded that the suggestion of Lima as an internal flight alternative
(IFA) is reasonable to the applicants.
ANALYSIS
[15]
The
applicants bring two separate claims of fear of persecution based on two different entities, the first being the Shining Path
and the second being the DINCOTE. Although some of the Board’s credibility
findings with regard to the Shining Path could give rise to some concern, I am
satisfied that the Board’s credibility findings with regard to the DINCOTE are
sound and cannot be said to be patently unreasonable. I am also of the
view that the Board’s conclusions with regard to state protection as well as a
valid IFA follow sound reasoning.
[16]
Where
there is state protection available, a claim for refugee protection cannot
succeed. As a result, this Court has repeatedly held that the availability of
state protection will be determinative of an application for judicial review
and, accordingly, that it is not necessary to address the other issues: Judge
v. Canada (Minister of Citizenship and
Immigration),
2004 FC 1089, [2004] F.C.J. No. 1321 (F.C.)(QL) at paras. 4-9; Muszynski v. Canada (Minister of Citizenship and
Immigration),
2005 FC 1075, [2005] F.C.J. No. 1329 (F.C.)(QL) at para. 6; Danquah v. Canada (Minister of Citizenship and
Immigration),
2003 FC 832, [2003] F.C.J. No. 1063 (F.C.)(QL) at para. 12.
[17]
Similarly, this Court has held on a number of
occasions that the existence of a valid IFA is determinative of a refugee claim
and, consequently, the other issues raised by the applicant upon judicial
review need not be considered: Rasaratnam v. Canada (Minister of Employment
and Immigration), [1992] 1 F.C. 706 (C.A.), Hazime v. Canada
(Minister of Employment and Immigration), [1994] F.C.J. No. 2069 (T.D.)(QL)
at para. 5; Ermolenko v. Canada (Minister of Citizenship and Immigration), 2004 FC 394, [2004] F.C.J. No. 488 (F.C.)(QL) at para. 8; Horvath
v. Canada
(Minister of Citizenship and Immigration), 2004 FC
1503, [2004] F.C.J. No. 1790 (F.C.)(QL) at para. 7; Igbinevbo v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1729, [2005] F.C.J. No. 2158
(F.C.)(QL) at para. 5.
[18]
In summary, the availability of either state
protection or an IFA is determinative of a refugee claim and thus, I believe
that these two issues are dispositive of the application before me, rendering
the other substantive issues irrelevant. All that will remain is the Guideline
7 procedural issue.
State Protection
[19]
The
appropriate standard of review for state protection is that of reasonableness simpliciter: Chaves v. Canada (Minister of Citizenship and
Immigration), 2005 FC 193, [2005] F.C.J. No. 232
(F.C.)(QL).
[20]
The applicants submit that the Board erred in
finding that state protection is available and cite a number of documents
concerning the murder of citizens by guerrilla groups, the change of government
in Peru and the regrouping of
the Shining Path. The applicants further submit that given their fear of the
DINCOTE, to expect them to then turn to the police for protection is
unreasonable. In this regard, the applicants cite Justice La Forest in Canada
(Attorney General) v. Ward, [1993] 2 S.C.R. 689 at paragraph 48 where he
states that “it would seem to defeat the purpose of international protection if
a claimant would be required to risk his or her life seeking ineffective
protection of a state, merely to demonstrate that ineffectiveness.”
[21]
I agree that in seeking state protection,
refugee claimants are not expected to be courageous or foolhardy. It is only
incumbent upon them to seek protection if it is seen as being reasonably
forthcoming. If the refugee claimants provide clear and convincing evidence
that contacting the authorities would be useless or would make things worse, they
are not required to take further steps.
[22]
In the case at bar, however, the Board made a
number of findings of implausibility regarding the applicants’ claims with
respect to the DINCOTE. The Board found it difficult to accept that the DINCOTE
would not have been able to find the applicants over a period of 9 months. The
Board also found it highly improbable that the DINCOTE would have been
searching for the applicants, but not have noticed that they had obtained
passports to leave the country and that ultimately they were able to leave the
country by plane. The Board also relied on the daughter’s evidence that she did
not know of any visit to the principle applicant’s parents’ home. The Board
concluded that the principal applicant’s allegation concerning ongoing police
searches was probably an exaggeration intended to diminish the need to seek
state protection.
[23]
While it is true that refugee claimants are
generally not expected to seek out state protection when the persecutor is the
police authority, the Board did not believe that the applicants were in fact
sought out by the police authority and I see no reason to disturb this finding.
The Supreme Court in Ward, above, provides that the onus is on refugee
claimants to provide clear and convincing proof of the absence of state
protection to rebut the presumption that such protection exists. The applicants
do not bring any other evidence to rebut this presumption and so I must conclude
that the Board’s conclusion that state protection is available is reasonable.
Internal Flight Alternative
[24]
Turning now to the issue of the availability of
an IFA, in Chorny v. Canada (Minister of Citizenship and Immigration), 2003
FC 999, (2003), 238 F.T.R. 289, Justice Judith Snider found that the
jurisprudence supported a conclusion that the standard with respect to an IFA was
patent unreasonableness.
[25]
Two criteria must be satisfied in order to
conclude that a claimant has an IFA. First, the Board must be satisfied on the
balance of probabilities that there is no serious possibility of the claimant
being persecuted in the new location. Second, the conditions in the new
location must be such that it would not be unreasonable for the claimant to seek
refuge there: Valencia v. Canada (Minister of Employment and Immigration) (1994), 85 F.T.R. 218 (T.D.).
[26]
The applicants argue that the Board failed to
properly consider the second prong of the test, specifically, that there does
not appear to be any assessment of the reasonableness of Lima apart from the Board’s assessment
concerning the daughter’s lack of problems there up to March 1999.
[27]
The applicants further submit that the Board’s
reliance on the applicant’s ability to find employment in Japan and to adapt to new situations is
irrelevant to the issue of Lima
as an IFA.
[28]
I find the Board’s conclusion that Lima would constitute a viable IFA not to
be patently unreasonable. The Board properly relied on Ali v. Canada (Minister of Employment and
Immigration), [1994] F.C.J. No. 46 (T.D.)(QL) for
the proposition that an IFA can be assessed by reference to the condition of
other family members living there. In this case, the Board found that the
daughter had resided openly in Lima for quite some time without any problems. There was no evidence to
the contrary, the Board having discounted the principal applicant’s
evidence that the DINCOTE had looked for him at his parents’ home in Lima.
[29]
While the Board’s mention of the applicants’
ability to adapt in Japan was
not of great relevance, it was nonetheless evidence showing that the applicants
had an aptitude to adapt to a new situation. Further, this comment does not
change the Board’s assessment that Lima was a valid IFA.
[30]
Finally, although the reasons of the Board with
regard to the IFA are brief, I am unable to find that the Board’s reasoning
on this point is “so flawed that no amount of curial deference can justify
letting it stand” Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R.
247 at para. 52.
Guideline 7
[31]
A review of the applicants’ application for
leave and judicial review reveals no mention of the issue of Guideline 7. It is
raised for the first time in their further memorandum of argument. It is well
established that the Court will deal only with the grounds of review invoked by
the applicant in the originating notice and thus, this issue is not properly
before the Court: Arora v. Canada (Minister of Citizenship and Immigration),
[2001] F.C.J. No. 24 (T.D.)(QL); Métis National Council of Women v. Canada
(Attorney General), 2005 FC 230, [2005] 4 F.C.R. 272 at para. 45.
[32]
In any
event, I note that no objection to the order of
questioning was made at any point during the hearing before the Board. In
the recent case of Geza v. Canada (Minister of Citizenship and Immigration),
2006 FCA 124, [2006] F.C.J. No. 477 (C.A.) (QL), Justice John Evans most aptly
stated that “[p]arties are not normally able to complain of a breach of the
duty of procedural fairness by an administrative tribunal if they did not raise
it at the earliest reasonable moment. A party cannot wait until it has lost
before crying foul.” (at para. 66). Therefore, in my view, the
applicants have waived their right to now complain about a breach of procedural
fairness with respect to the order of questioning.
[33]
In the result, this application is dismissed.
JUDGMENT
The application for judicial
review is dismissed.
“Danièle
Tremblay-Lamer”
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